796 F.3d 548 (5th Cir. 2015), 14-10932, United States v. Simpson

Docket Nº:14-10932
Citation:796 F.3d 548
Opinion Judge:PRISCILLA R. OWEN, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff--Appellee, v. MATTHEW NORMAN SIMPSON, Defendant--Appellant
Attorney:For United States of America, Plaintiff - Appellee: Brian W. McKay, Esq., Assistant U.S. Attorney, James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX. For Matthew Norman Simpson, Defendant - Appellant: Shirley L. Baccus-Lobel, Law Offices...
Judge Panel:Before REAVLEY, OWEN, and HIGGINSON, Circuit Judges.
Case Date:August 12, 2015
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
SUMMARY

Defendant appealed his resentence on several grounds, asserting, among other claims, that 18 U.S.C. 3581(b)(3) imposes a statutory maximum sentence of twelve years for a Class C felony. The court concluded that the district court did not err in imposing 240 months of imprisonment for conspiracy to commit mail and wire fraud and a consecutive sentence of 240 months of imprisonment for obstruction... (see full summary)

 
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Page 548

796 F.3d 548 (5th Cir. 2015)

UNITED STATES OF AMERICA, Plaintiff--Appellee,

v.

MATTHEW NORMAN SIMPSON, Defendant--Appellant

No. 14-10932

United States Court of Appeals, Fifth Circuit

August 12, 2015

Appeal from the United States District Court for the Northern District of Texas.

For United States of America, Plaintiff - Appellee: Brian W. McKay, Esq., Assistant U.S. Attorney, James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX.

For Matthew Norman Simpson, Defendant - Appellant: Shirley L. Baccus-Lobel, Law Offices of Shirley Baccus-Lobel, Dallas, TX.

Before REAVLEY, OWEN, and HIGGINSON, Circuit Judges.

OPINION

PRISCILLA R. OWEN, Circuit Judge:

Our court previously remanded this case to the district court after reversing one of Matthew Simpson's convictions.1 Simpson was resentenced and now appeals that sentence on several grounds, asserting, among other claims, that 18 U.S.C. § 3581(b)(3) imposes a statutory maximum sentence of twelve years for a Class C felony and that the district court accordingly erred in imposing 240 months of imprisonment for conspiracy to commit mail and wire fraud and a consecutive sentence of 240 months of imprisonment for obstruction of justice, both of which are Class C felonies. We affirm.

I

Simpson and 18 co-defendants were indicted in 2009 in a complex conspiracy. While most of Simpson's co-conspirators pleaded guilty, Simpson and three others proceeded to trial.2 As set forth in this court's prior opinion:

[t]rial evidence showed that the defendants and their co-conspirators conspired to defraud various telecommunications companies, lessors, creditors, credit reporting agencies, and various other service providers, of goods and services. Evidence showed that beginning in 2003, the co-conspirators were involved in the creation and/or operation of a series of corporate entities which defrauded telecommunications companies, including, inter alia : American Discount Telecom (ADT), a company that promulgated a method of using routing codes that made long distance or toll-free calls appear to be local calls, thus avoiding paying larger telephone service providers for use of their networks; TxLink, a wholesale dialup internet company which Simpson used to steal network capacity and divert customer payments from one of his employers, CommPartners; camophone.com, a spoofing service that allowed customers to disguise the number [from which] they were calling . .., which allowed spoofed calls to be routed locally through toll-free lines, thereby avoiding paying fees for the calls; ColoExchange, a colocation company that Simpson used to engage in both lease fraud and insurance fraud; Aston Technology, a company that Michael Faulkner, a co-conspirator, pretended to control to obtain network capacity without paying for it; and Union Datacom (UDC), Premier Voice, Lone Star Power, Incavox, and several other corporate entities that entered into contracts for commercial telecommunications services, leases, and other agreements for goods and services, which were not paid for. The companies were then abandoned or renamed by the co-conspirators to avoid the debts. Evidence showed that the defendants provided false identity information and postal addresses; provided false credit histories, bills, invoices, financial statements, and credit references; and used assumed identities in applications and contracts in order to hide their association with the shell corporate entities and with each other.3

The jury convicted Simpson of conspiracy to commit mail and wire fraud under 18 U.S.C. § 1349; aiding and abetting the transmission of spam under 18 U.S.C. § 1037(a)(2); obstruction of justice under 18 U.S.C. § 1512(c)(1); and false registration of a domain name under 18 U.S.C. § 3559(g)(1).

Simpson was sentenced to a term of 480 months in prison. Specifically, the district court sentenced Simpson to 240 months for the conspiracy conviction and 240 months for the obstruction of justice conviction, to be served consecutively. For Simpson's other two convictions, the district court imposed sentences to run concurrently: thirty-six months of imprisonment for aiding and abetting the transmission of spam and eighty-four months of imprisonment for falsely registering a domain name.

In his first appeal, Simpson challenged his convictions and sentences. Although we affirmed three of Simpson's convictions and a two-level sentence enhancement based on Simpson's perjured testimony,4 we reversed the false-registration conviction because it was not supported by sufficient evidence.5 We accordingly vacated Simpson's sentence and remanded for resentencing.6

On remand, the district court reimposed the 480-month sentence consisting of consecutive sentences of 240 months each for Simpson's conspiracy and obstruction of justice convictions and a concurrent sentence of thirty-six months for aiding and abetting the transmission of spam. Simpson again appeals to this court arguing that the district court committed procedural errors and that the sentence is substantively unreasonable. The Government contends that several of Simpson's arguments, which were not raised in his first appeal, are waived under the " mandate rule." We do not address the applicability of the mandate rule but proceed to the merits of the issues raised because there was no sentencing error.7

II

After this court reversed Simpson's false-registration conviction, an addendum to Simpson's original Presentence Report (PSR) reflected that, " [b]ased on a Criminal History Category of I and a Total Offense Level of 43," an advisory guidelines sentence of life imprisonment would result. However, because the combined statutory maximums for his three affirmed convictions was less than a life sentence, the guidelines range was reduced to reflect the statutory maximum of 516 months.8 The district court imposed a sentence that included 480 months of imprisonment.

III

We first address Simpson's arguments that the district court committed procedural error during resentencing.

A

The statutes under which Simpson was convicted for obstruction of justice and for conspiracy to commit wire and mail fraud expressly provide that the maximum sentence for each of these convictions is twenty years.9 Nonetheless, Simpson argues that the maximum sentence for each of these convictions is twelve years. " [W]e review de novo a sentence that allegedly exceeds the statutory maximum term." 10

Simpson's argument relies on the interaction between sections 3559(a) and 3581 of Title 18 of the United States Code. Under § 3559(a), " [a]n offense that is not specifically classified by a letter grade in the section defining it, is classified if the maximum term of imprisonment authorized is . . . less than twenty-five years but ten or more years, as a Class C felony." 11 None of the statutes under which Simpson was convicted for conspiracy to commit mail and wire fraud and for obstruction of justice contain a letter grade.12 Under § 3581, the term of imprisonment for a Class C felony is " not more than twelve years." 13 Simpson reasons that § 3581 is controlling and imposes a maximum sentence of twelve years for each of his Class C felony convictions.

But Simpson's argument overlooks other statutory provisions. Section 3559(b) provides that an offense assigned a letter grade " carries all the incidents assigned to the applicable letter designation, except that the maximum term of imprisonment is the term authorized by the law describing the offense." 14 Section 3551 indicates that the sentencing provisions in chapter 227 of Title 18, which include § 3581, do not apply when " otherwise specifically provided." 15

Our court has not yet analyzed, in a published opinion, the interplay between § § 3551, 3559, 3581, and a statute of conviction that specifies a maximum sentence. However, in United States v. Pontefract, an unpublished opinion, we rejected a defendant's argument that a thirty-year sentence for a Class B felony exceeded § 3581's maximum twenty-five-year sentence for Class B felonies because the statute of conviction " specifically provided" for a maximum sentence of thirty years.16 Four of our sister circuit courts have addressed similar questions and all have held that the sentencing provisions in the statute of conviction apply notwithstanding any arguable conflict with the provisions in § 3581.17 As the Second Circuit noted, " Congress would not logically leave in place its statutory scheme that assigned a penalty to the commission of an offense, classify the offense according to that penalty, and then use the same classification to assign a different penalty." 18 We agree and hold that the statutory maximum sentences for convictions under § 1349 for conspiracy to commit mail or wire fraud and § 1512(c)(1) for obstruction of justice are twenty years.

B

Simpson's offense level was increased by two points under § 2B1.1(b)(4) for receiving stolen property while being " in the business of receiving and selling stolen property." 19 The district court's determination that Simpson was in the business of receiving and selling stolen property is a factual finding we review for clear error.20

Simpson argues that § 2B1.1(b)(4) should not apply to him because it is " intended as a 'punishment for fences, people who buy and sell stolen goods, thereby encouraging others to steal, as opposed to thieves who merely sell the goods which they have stolen." 21 But Simpson does not dispute that he acquired telephone minutes and broadband service from Faulkner, which he resold, and the trial evidence demonstrates that Simpson and his co-conspirators used various entities to...

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